POINTERS OF DEVELOPMENT
A. Observation of misuse of Section 124A
An unprecedented judicial criticism of the way the sedition law is being used by the government to crush liberties came to be noticed by the Hon’ble Supreme Court. The newspaper are flooded with observations of the Chief Justice of India, N.V. Ramana who asked why a colonial law used against Mahatma Gandhi and Bal Gangadhar Tilak continued to survive in the law book after 75 years of Independence.
“Sedition is a colonial law. It suppresses freedoms. It was used against Mahatma Gandhi, Tilak… Is this law necessary after 75 years of Independence?” Chief Justice Ramana, heading a three-judge Bench, orally addressed Attorney General K.K. Venugopal and Solicitor General Tushar Mehta, appearing for the Centre. The CJI said sedition or Section 124A of the Indian Penal Code was prone to misuse by the government. The use of sedition is like giving a saw to the carpenter to cut a piece of wood and he uses it to cut the entire forest itself,”
– Chief Justice Ramana
Sedition law is in direct conflict with freedom of speech and expression. The CJI’s oral statement in open court takes a significant note amidst rising public denouncement of Central and State law enforcement agencies using the sedition law to silence dissent, muffle free expression and for denying bail to incarcerated activists, journalists, students and civil society members.
The CJI’s has also opened the floor for debate and introspection on the court’s own judgment in 1962, in the Kedar Nath case, which upheld Section 124A.
B. The First usage of the Provision
The case of Tara Singh Gopi Chand v. The State (1951 CriLJ 449) was the first instance of a court in independent India adjudicating on the constitutional validity of section 124A of the IPC. The then-Punjab High Court, in this case, recognised that section 124A was indisputably a restriction on the freedom of speech and expression, and invalidated the provision on the basis that it was in contravention of the fundamental right of freedom of speech and expression under Article 19 of the Indian constitution.
Soon after, independent India’s first Parliament passed the Constitution (First Amendment) Act, 1951 which, among other things, sought to resolve the anomaly in the constitutionality of the sedition law as a result of the Tara Singh Gopi Chand judgment. It did so by introducing new grounds on which the right to freedom of speech and expression could be reasonably restricted.
C. Conviction rate is low
Statistically, the CJI drew the attention of the Attorney General to the conviction rates under sedition to be low and amplitude of misuse of power.
The CJI asked the government why it did not throw out the sedition law along with the hundreds of “stale laws” it had expunged from the statute books. “Your government is taking out a lot of stale laws from the law books, why have they not looked into this,” Chief Justice Ramana asked Mr. Venugopal. People had suffered and were scared of the misuse of the sedition law, Chief Justice Ramana said. “We are not blaming any particular government or State. But do look at how Section 66A of the Information Technology Act is continuing to be used… How many unfortunate people have suffered? And there is no accountability for all this…” he noted.
The CJI said the sweeping powers of Section 124A gives even a village police officer carte blanche to trample on the right to liberty and free speech of ordinary citizens.
“If a police officer wants to fix anybody in a village for something, he can use Section 124A… People are scared. Our concern is misuse of the law and the lack of accountability. Why has it continued in the statute book even after 75 years of our Independence,” Chief Justice Ramana asked the government’s law officers repeatedly.
The Chief Justice said the Supreme Court would “definitely look into this Section 124A”.
“The situation on the ground is grave… If one party does not like what the other is saying, Section 124A is used… It is a serious threat to the functioning of individuals and parties,” Chief Justice Ramana noted.
D. The State’s argument
Mr. Venugopal submitted that the court need not strike down Section 124A.
“It is enough to see if there were any excesses in its use and limit the Section to its real purpose… That would be enough,”
Mr. Venugopal said.
E. Batch of Petition to Scrap Section124A
The petition filed by retired Army General S.G. Vombatkere, represented by advocates P.B. Suresh and Prasanna S., to quash Section 124A. The Bench noted that two other petitions filed by Kishore Chandra Wangkemcha and M/s Aamoda Broadcasting Company Private Limited, the latter against the Andhra Pradesh government, is pending before the Supreme Court. Both cases concern sedition charges. The Bench ordered the cases to be listed before an appropriate Bench for hearing.
F. Challenge on the ground of Presumption of Constitutionality not applicable to Constitutional Law
Meanwhile, senior journalist Arun Shourie and NGO Common Cause, both represented by advocate Prashant Bhushan, has moved the Supreme Court to quash Section 124A. Their petition contended that a “presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or body”. He said “a statute criminalising expression based on unconstitutionally vague definitions of ‘disaffection towards Government’ etc. is an unreasonable restriction on the fundamental right to free expression guaranteed under Article 19 (1)(a) and causes constitutionally impermissible ‘Chilling Effect’ on speech”. Referring to the Supreme Court decision upholding the validity of the provision in the 1962 matter of Kedar Nath Singh v. State of Bihar, Shourie’s petition states that in that case “the constitutionality of sedition was tested and upheld on the premise that all laws enjoy a ‘presumption of constitutionality’.” But the court “in Navtej Singh Johar v. Union of India… and Joseph Shine v. Union of India… has held that the presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or body… and hence ‘Kedar Nath’ needs revisiting”.
He said the Kedar Nath judgment also “failed to take note of the judgment of the Constitutional Bench in Superintendent Central Prison v. Dr Ram Manohar Lohia… wherein it was held that (a) only aggravated disturbance of ‘public order’ as opposed to mere ‘law and order’ could be used to restrict freedom of speech and expression, and (b) there should be direct and proximate connection between the instigation and the aggravated disruption of public order”.
G. Recent Concerns
In June, the Supreme Court quashed sedition and other charges that were registered against journalist Vinod Dua by a BJP leader from Himachal Pradesh for making comments critical of Prime Minister Narendra Modi and the Central government. The Supreme Court on May 31 said that it “is time to define the limits of sedition,” noting that sections of the Indian Penal Code that deal with sedition require interpretation, particularly in the context of media freedom.
The Public debate over this issue was reignited last week when a three-judge division bench of the Supreme Court said in an order on May 31, 2021, in the case of M/s Aamoda Broadcasting Company Pvt. Ltd. & Anr. v. The State of Andhra Pradesh & Ors. (W.P. (Cr.) No. 217/2021) that “there is a need to define the limits of sedition”. Later in the week, a two-judge division bench of the apex court, in the case of Vinod Dua v. Union of India & Ors., quashed an FIR (first information report) against the petitioner, journalist Vinod Dua, for the offence of sedition. In its judgment, the court made an observation that every journalist shall be protected from the charge of sedition taking into account the interpretation of the offence as propounded in the court’s landmark judgment in the case of Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955).
H. Vestiges of Colonial Era still part
Many legal experts argue that the sedition clause is a vestige of British colonial rule, originally introduced to suppress critical voices emanating from the Indian freedom movement. Section 124A of the Indian Penal Code, 1860 (IPC), as we have today, was absent from the original draft of Macaulay’s IPC in 1860, and was only introduced in the year 1870, piloted by James Stephen. This version went through further modification through the IPC (Amendment Act), 1898 since when it has largely retained its form.
